Times Reporter Will Not Be Called to Testify in Leak Case

Legal Fight Ends for James Risen of the New York Times

WASHINGTON — James Risen, a New York Times reporter, will not be called to testify at a leak trial scheduled to begin this week, lawyers said Monday, ending a seven-year legal fight over whether he could be forced to identify his confidential sources.

The Justice Department wanted Mr. Risen to testify at the trial of Jeffrey Sterling, a former C.I.A. officer charged with providing him details about a botched operation in Iran that was intended to disrupt that country’s nuclear program. Mr. Sterling had raised concerns inside the government about the program, and prosecutors suspect he took those concerns to Mr. Risen, who described the program in his 2006 book, “State of War.”

Mr. Risen, a two-time Pulitzer Prize winner, was the highest-profile journalist drawn into the Obama administration’s attempt to crack down on government officials who talk to reporters about national security. The Justice Department has brought more charges in leak cases than were brought in all previous administrations combined. The case became a rallying cry for journalism groups and civil rights advocates. Mr. Risen took his fight to the Supreme Court and lost, but Attorney General Eric H. Holder Jr. ultimately said prosecutors would not force him to reveal his sources.

“We said from the very beginning that under no circumstances would Jim identify confidential sources to the government or anyone else,” Mr. Risen’s lawyer, Joel Kurtzberg, said. “The significance of this goes beyond Jim Risen. It affects journalists everywhere. Journalists need to be able to uphold that confidentiality in order to do their jobs.”

The Justice Department first subpoenaed Mr. Risen to testify in the case in 2008, during the Bush administration. Mr. Holder authorized the subpoena again in 2011. In addition to subpoenaing Mr. Risen, the Justice Department secretly seized phone records from The Associated Press, labeled one Fox News reporter a criminal co-conspirator and sought grand jury testimony from another.

But those efforts provoked a backlash among journalism groups and civil rights advocates, and as Mr. Risen’s case dragged on, Mr. Holder, who has announced plans to leave office, signaled a change in policy. He rewrote the Justice Department’s rules for subpoenaing journalists and said he would not try to put reporters in jail for doing their jobs.

That edict set up a peculiar court hearing last week. Mr. Risen took the witness stand and said he would not reveal his sources or offer any details about where he got the information. Prosecutors, under orders from Mr. Holder, did not demand answers, since that could have exposed Mr. Risen to a charge of contempt and a jail sentence.

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James Risen, a New York Times reporter, will not be called to testify at a leak trial, ending a lengthy legal fight over whether he could be compelled to reveal his sources.Credit
Cliff Owen/Associated Press

“Mr. Risen’s under-oath testimony has now laid to rest any doubt concerning whether he will ever disclose his source or sources for Chapter 9 of State of War (or, for that matter, anything else he’s written). He will not,” prosecutors wrote in court filings. “As a result, the government does not intend to call him as a witness at trial.”

Mr. Risen testified last week that he had multiple sources and would not identify any of them. With prosecutors prohibited from demanding specifics, that testimony potentially aided Mr. Sterling’s case, so his defense team subpoenaed Mr. Risen as a defense witness. But late Monday, Edward MacMahon, a defense lawyer, said that he had withdrawn the subpoena.

Mr. Risen, who learned about the decision to drop the subpoena in a phone call from his lawyer Monday evening while in an interview, referred questions to his lawyer.

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“I’m glad the government realizes that Jim Risen was an aggressive reporter doing his job and that he should not be forced to reveal his source,” Dean Baquet, the executive editor of The Times, said in a statement on Monday.

The case does not end, however, for Mr. Sterling, whose trial begins Tuesday. The Justice Department uncovered email and phone records showing that Mr. Risen and Mr. Sterling were in contact, but the evidence made public so far is largely circumstantial and prosecutors have said they could not win without Mr. Risen’s testimony.

Mr. Holder has said that one of his biggest regrets was labeling James Rosen, a Fox News reporter, a potential co-conspirator for asking about classified information.

Mr. Holder also led revisions to Justice Department’s guidelines that offer journalists more protections when prosecutors want to review their phone records, emails or notes.

Mr. Kurtzberg, a lawyer with Cahill Gordon & Reindel, said that while Mr. Risen ultimately may not have to testify, the Justice Department used the case to create court precedent that could be used to force journalists to testify in the future.

“I worry about future administrations,” he said. “Now there’s bad precedent, and not every executive branch in the future will exercise their discretion the way this one did. It didn’t have to go this way.”

A version of this article appears in print on January 13, 2015, on Page A1 of the New York edition with the headline: Reporter Wins a 7-Year Fight Not to Testify. Order Reprints|Today's Paper|Subscribe